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Arkansas Woman Removed From Role In Mother’s Estate

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JULY 13, 1998 VOLUME 6, NUMBER 2

Anna Elizabeth Guess lived to the age of 83 on her farm in Cabot, Arkansas. She raised seven children, and had been generous to them on many occasions. In 1989, for example, she gave her son Wayne title to ten acres of her farmland in return for a three-year-old Chevy pickup.

In 1991 Ms. Guess accidentally set her own kitchen on fire by forgetting that she had a meal cooking on the stove. Shortly after that fire, Ms. Guess’ daughter Alice Going secured a durable power of attorney from Ms. Guess. Later, Ms. Going insisted that the kitchen fire was the primary reason she had gotten her mother to sign the power of attorney, though several of her brothers and sisters insisted that the real motivation was to prevent Ms. Guess from giving away any more of her farm.

In 1994, at the age of 82, Ms. Guess entered into a land sale contract with her granddaughter, Cindy Going Wilson (the daughter of Alice Going). Ms. Wilson and her husband agreed to purchase Ms. Guess’ 85-acre farm for $170,000.

Under the agreement, Ms. Guess’ granddaughter was not required to make any payment on the farm for nine months. After that time, she was to begin making thirty-six monthly payments of $500 toward a “down payment.” During that period, no interest would accrue. After the “down payment” was completed, Ms. Wilson and her husband would begin paying off the $152,000 balance of the purchase price, with payments extended over 28 years.

Ms. Guess died in September, 1995. Her daughter Alice Going asked the Arkansas probate court to appoint her as personal representative of her mother’s estate, and she sought to have her mother’s will admitted to probate. The court appointed her, over the objections of the rest of Ms. Guess’ descendants.

Ms. Guess’ other children and grandchildren pointed out that, because of the terms of the agreement, granddaughter Cindy Wilson would not have paid off the loan on the farm until most of them were in their seventies. They argued that Alice Going could not be expected to challenge the fairness of the agreement, since it would mean setting aside a deal that was clearly beneficial to her own daughter.

The Arkansas probate judge disagreed. He ruled that the agreement was valid, and that the family members had no cause to insist that the personal representative attack the land sale. The family members appealed his ruling.

The Arkansas Court of Appeals reversed the probate judge, siding instead with the family members. The court pointed out that, under Arkansas law, a personal representative can be removed when he or she “becomes unsuitable.” The judges pointed out that Alice Going had testified that she was aware that all her brothers and sisters wanted her to challenge the agreement, but that she declined to do so in part because it would adversely affect her own daughter. “There can be no more explicit proof of a conflict of interest,” wrote the court, “than this testimony.” Guess v. Going, Arkansas Court of Appeals, April 29, 1998.

A similar result might be expected under Arizona law. Arizona, like Arkansas, provides for removal of a personal representative for conflicts of interest. In fact, Arizona courts have extended these principles further than the courts of any other state. In Fiduciary Services v. Shano, a 1993 Arizona Court of Appeals case, the court held that a personal representative “has a fiduciary duty to those who succeed to decedent’s estate.” In fact, reasoned the court, that duty is so strong that even the personal representative’s attorney has a duty to the heirs, devisees and creditors of the estate. A personal representative who finds that he or she is unable to discharge those duties, even when it requires proceeding against family members, should expect to be removed upon the request of any interested party.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.